ILI Chairman Reviews New Legislative Drafting Manual

Arthur Rynearson’s book is principally intended for, and indeed dedicated to, the professional legislative draftsmen of the United States Congress. But wittingly, or otherwise, this is a book for almost any lawyer, or non-lawyer, here in the United States or anywhere, interested in constitutions, government, the rule of law, or indeed mental and intellectual clarity. It is a superb book, whose quality may be obscured by its accurate but modest title. In this respect, the title reflects the character of the author: a superb craftsman, of deceptively modest demeanor.

I have been an occasional drafter of laws, and observer of the same, in Egypt, Indonesia, Rwanda, Georgia, Qatar, the Caribbean and elsewhere, as well as a longtime delegate to the United Nations Commission on International Trade Law (UNCITRAL) and active in the International Institute for the Unification of Private Law (UNIDROIT), bodies often engaged in the drafting of model laws. In my work, I have also encountered the storied institution of the Parliamentary draftsmen of the British tradition. In spite of all this and a love of drafting and its central place in the calling that is law, I never truly, or even slightly, appreciated the heights of creative skill, art and learning entailed in the work of the first class legislative drafter.

Arthur Rynearson’s quarter century career as legislative draftsman, ultimately as Deputy Legislative Counsel of the United States Senate, enables him to draw on the experience of drafting literally thousands of legislative instruments for the US Senate. But the depth and breadth of the work makes it, in my view, of equal value for draftsmen in state and municipal chambers, and for non-Americans, a point that Arthur makes in the book. He has taught draftsmen from all over the world, notably at the International Law Institute, of which I am Chairman. In my view the book has a double value for draftsmen from countries with developing legislatures: (i) it instructs in the science and art of drafting; but (ii) and possibly more profoundly, a close study of the book shows the way to the essential elements of a legislature necessary for good laws: professional drafters, respect between drafters and their bosses and partners the legislators and other policy makers, the need for staff and sufficient preparation time, etc.

If you are a contract drafter, or a will drafter as I once was in private practice, you may think you know what drafting is: you draft, you hope the instrument, the deal, the estate plan, holds up, or if not, that a court or arbitrator, applying known canons of construction, will uphold what you have done. Legislative drawing is much more. It can provide a level of excitement, maybe not known to the rest of us. As Arthur notes, “Time often flies while drafting [legislation]”.

Properly done, well made legislation, quite literally promotes the rule of law and democracy, through transparency if the legislation is clear, accountability through enabling legislative oversight of the executive, due process and legality, if the law is unambiguous and not vague, and constitutionalism by respecting the separation of legislative and executive functions.

Rynearson breaks down the legislative drafting process into five steps: (i) legalize; (ii) formalize; (iii) integrate; (iv) organize; (v) clarify. As you read into each of these, the rich and challenging world of legislative drafting reveals itself.

“Legalize” involves all the expected strictures of good drafting, from proper subject (eg the President), through verb forms and compliance with a sophisticated Constitution.“Formalize” makes one think about bills, resolutions, and about amendments and the vexations of amending an intricate existing statutory system.“Integrate” raises questions of just what existing law is being changed, whether the new and changing language is to be “freestanding” or knitted into the existing language and many such conundrums. And the reader is reminded of the differences between an Act of Congress, Public Law, the Statutes at Large, the United States Code and suchlike.“Organize” When one thinks of some of the complex legislation of our time, whether for example the Affordable Care Act or Dodd-Frank, it is clear that organizing and drafting the same can be a formidable task indeed. And we learn about the “Tax Style” of drafting.“Clarify” takes us into the world of ‘intentionalist” and “new textualist” judges, and incidentally assesses the relative merit of “definitions” and “cross-references”.I cannot begin to do justice, in a short review, of the literally hundreds of fascinating nuggets in this book. It must be read to learn of them.

There is very a detailed table of contents, a useful index and more than 50 pages of exercises (and answers!).

To conclude: it has been an almost unadulterated pleasure to read this book. I heartily recommend it.

* Professor of Law, Georgetown University Law Center, and Chairman, International law Institute Properly done, well made legislation, quite literally promotes the rule of law and democracy, through transparency if the legislation is clear, accountability through enabling legislative oversight of the executive, due process and legality, if the law is unambiguous and not vague, and constitutionalism by respecting the separation of legislative and executive functions.